Friday, March 08, 2019

Mandatory Sentence unconstitutional and undemocratic? Parliament removes powers of judges?

MANDATORY SENTENCE - This is when the LAW just fix one sentence, be it 10 years imprisonment, life imprisonment and even the death penalty.
What happens is simply that JUDGES are deprived of the powers to sentence a person to an appropriate and just sentence based on circumstances of the case.
Mandatory sentences also oust one important stage of the fair trial - the sentencing process, where judges will listen to submission of the prosecution on what a just sentence should be in a particular case(Prosecution do also highlight aggravating factors - as to why a higher sentence should be imposed - it could be because the convicted had previously been convicted for similar offences, or maybe because of the role he played in the crime, etc...), whilst the convicted(or his/her lawyer) would highlight what is known as mitigating factors(factors that justify a lower sentence - could be the age, fact that it is a first time offender, the lesser role that he played, etc...). Either way, the judge hears all these arguments and decides on a just and appropriate sentence for each and every person convicted.
When there is a MANDATORY sentence, judges have no choice but to give the same mandatory sentence to all convicted of the crime. This brings about injustice.
Parliament could maybe stipulate minimum sentences, and even maximum sentences and the judge can still decide the most just sentence that falls between the upper and lower limits. Better still, if only minimum sentences are set...but not any maximum.
As such, all mandatory sentences should be removed from our laws - and judges are RESTORED their role and powers when it comes to sentencing.
However, when it comes to the Mandatory DEATH PENALTY, there is another more serious question of the right to life. Is there any justification that other human beings can deprive the life of another? Remember, when Malaysia hangs anyone, we the citizens are responsible for the killing of someone - for we are a DEMOCRACY, a government chosen by the people...
There is also the risk of miscarriage of justice, i.e. that an innocent person can very easily be executed. Mistakes can always be made in the administration of justice - it could be the police, prosecutors, accused(or Defence Lawyers) and even judges. There have been so many cases that after being executed, truth emerges...and it is of little use to the 'already dead' that their sentence and/or conviction has been overturned, or that they are pardoned or that the State(government) apologizes and pays out compensation. It is safer and more humane to simply never execute anyone one but God can be 100% sure, and no amount of 'checks and balance' is safe enough.
In June 2018, the Caribbean Court of Justice strikes down mandatory death penalty in Barbados - the Caribbean Court of Justice (CCJ), the region’s highest court has unanimously declared the mandatory death penalty unconstitutional in Barbados.
The Court also found that parliament was wrong to legislate for an automatic death sentence because under the Constitution of Barbados the selection of punishment must be exclusively performed by the courts. A mandatory sentence “reduces the court’s sentencing role to ‘rubber-stamping’ the dictates of the Legislature”, the Court said.
In December 2017, the Kenyan Supreme Court Declares Mandatory Death Penalty Unconstitutional.

According to The Death Penalty Project, Kenya was the 12th country where mandatory death penalty was successfully challenged as being unconstitutional.

Will Malaysia be the 14th? 

We must not just be limited to mandatory death penalty - but remove all mandatory sentences...

Do we need court cases when the new government could simply do the right thing. Our Tommy Thomas, the Attorney General, should look into this and advice the government to abolish all mandatory death sentences..

Another reason, why simply abolishing mandatory death penalty in Malaysia is nothing great - but what is great is that Malaysia is abolishing the death penalty in toto...unless Mahathir and/or PH + Warisan 'chicken out' at the last moment. Here, we will see how strong is the political will of the government...

Hopefully 'political considerations' or perceived loss of support will not deter Malaysia from doing the right thing.

It is interesting that PKR, DAP, Amanah, Bersatu and Warisan have not yet publicly declared they will abolish the death penalty. That would certainly be

Mandatory death sentence for drug trafficking unconstitutional, court told

Wednesday, 6 Mar 2019 6:22 PM MYT

PUTRAJAYA (Bernama): The amendment to the the Dangerous Drugs Act 1983 to impose the mandatory death sentence for drug trafficking is unconstitutional, the Federal Court was told on Wednesday (March 6).

Lawyer Datuk Seri Gopal Sri Ram said the amendment to the Act removed the court's discretion to impose either life imprisonment or death sentence for the offence.

"The power to pass sentences and to determine the measure of punishment are both part of judicial powers. The judicial function must be exercised by the judiciary and not by Parliament," he said.

Sri Ram said this before a nine-man bench in the appeals by three foreigners who were challenging the mandatory death sentence imposed by the High Court.

He said the removal of the discretion by the legislature amounted to an interference of judicial function and went against the doctrine of separation of powers.

Sri Ram argued the amendment to the Act had reduced the court's discretion to a mere "rubber-stamping" exercise.

Peruvian Jorge Crespo Gomes and South Africans Letitia Bosman and Benjamin William Hawkes were separately convicted and sentenced to death by the High Court between 2015 and 2016 for trafficking in drugs they were accused of committing in 2013.

All three lost their appeals at the Court of Appeal.

Between 1975 and 1983, judges were given the discretion to either impose the death penalty or life imprisonment after finding an accused person guilty of drug trafficking.

The government amended the law two years ago to give the court the option to either impose the death sentence or life imprisonment, but it was subject to certain conditions by the public prosecutor.

This new law came into effect from March 15 last year.

However, the three foreigners cannot benefit from the new law because it does not have a retrospective effect.

At the hearing of the appeal, Sri Ram - who represented the foreigners - also submitted that the Federal Constitution only allowed a court to take life in accordance with the law.

He said the death penalty was not a commensurate punishment for all drug cases.

Lawyer Abdul Rashid Ismail who was also appearing for the foreigners, submitted that Malaysia is the only country in the Commonwealth still imposing the death sentence for drug trafficking offences.

However, deputy public prosecutor Datuk Nik Suhaimi Nik Sulaiman said Parliament validly passed the law based on policy considerations of the executive at the time.

He said the reason for the mandatory death sentence being imposed was because the drug menace was serious and a threat to the security of the nation.

He said it was the duty of the court to pass a sentence according to the law as it stood.

The bench chaired by Chief Justice Tan Sri Richard Malanjum reserved judgment to a date to be fixed. - Bernama - Star, 6/6/2019

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